As reported by the Huffington Post, his lawyer said the following: “This is sort of an undercover-type, investigative journalism thing, and I know undercover — I’m using that term loosely […] This is a guy who went where he needed to go to get the story. He went into the sort of dark corners of the Internet. He’s being prosecuted for that, for going to get the story.”

If true, that might muster a decent bullwark. However, the chat logs that the government collected and is using as evidence do not appear to indicate that Keys was simply digging for a story; as Ryan Reilly pointed out today on Twitter, Matthew Key is, as per the Federal government, known to have said “if you want to attack fox news, pm me. i have user/password for their cms.”

Keys’ lawyer went on to say that “[the indictment] is a nasty shot across the bow for all journalists that would seek to cover Anonymous.” Given the amount of evidence in place, especially when taking into consideration the conversational threads, that doesn’t appear to be true.

That said, TNW would like to highlight a few notes from the EFF about the amount of punishment that Keys could receive for a somewhat prankish incursion onto a CMS:

For allegedly aiding [the] act of vandalism, Keys was charged with three felony crimes [… giving Key’s] the possibility of an extremely long jail sentence for a crime that caused little harm, noting that Keys faced a maximum punishment of 10 years for two of the counts and five years for the third—totaling twenty-five years.

This should bring two things to your mind: Aaron Swartz, and the CFAA. Swartz, the noted Internet activist who committed suicide following intense prosecutorial pressure, and felony charges stemming from the Computer Fraud and Abuse Act. A law has been proposed, named for Swartz, to reform the CFAA to prevent it from being misused to seek outsize penalties.

More broadly, this case underscores how computer crimes are prosecuted much more harshly than analogous crimes in the physical world. For example, count one of Keys’ indictment charges him with conspiracy to cause damage to a protected computer. The damage was altering a news article, the equivalent of vandalism.

Under the CFAA, this is a felony with a maximum punishment of five years in prison. Meanwhile, California state law criminalizes physical vandalism – like spray painting graffiti on a freeway sign– as a “wobbler” meaning it can be punished as either a misdemeanor—which comes with a maximum of a one year sentence—or a felony. If charged as a felony, the court can impose a sentence of 16 months, 2 years or 3 years.

An article was changed for a 30 minute period. If Keys’ guilt is proven, he deserves to be punished for the act of abetting the vandalism. That said, the penalty should match the crime.